Concept and principles of Russian law

Legal principles act as normative sources in many legal systems. The most common of these are the provisions on equality, reasonableness, conscientiousness, justice. The Russian Federation pawns them in its constitutional system . права, в свою очередь, выступают в качестве общепринятых положений, обязательных для соблюдения всеми странами. The principles of international law, in turn, act as generally accepted provisions that are binding for all countries.

The problem of relation

закреплены на законодательном уровне. As sources, the principles of Russian law are fixed at the legislative level. In this situation, they have a normative meaning. In this regard, there is a problem in the correlation of legal acts and principles as their sources. It also appears due to the fact that the consideration of the provisions on which the whole legal model is based is very ambiguous in the literature. There is no unity of opinion about their list. In addition, there is no clear definition of them. одними экспертами воспринимаются как нечто высшее, стоящее над институтом норм. The principles of Russian law by some experts are perceived as something supreme, standing above the institution of norms. Other authors point to the conditionality of the content of acts. выработаны практикой нормативного регулирования отношений в обществе. They emphasize that the fundamental principles of Russian law are worked out by the practice of regulatory regulation of relations in society. Frequently arising questions and problems are treated extremely subjectively.

Pre-revolutionary state of the system

Before the reform of 1864, the court, revealing in the law of ambiguity or incompleteness, had to transfer materials of the case of the highest instance. As a result, the dispute moved from one body to another, there was red tape, until the conflict was taken by the State Council. He expressed his own opinion and granted it to the monarch for approval. The end of this was laid down by the Judicial Statutes adopted by Alexander II. In them, instances were ordered not to suspend proceedings because of contradictions or incompleteness of norms, but to resolve them in accordance with the general understanding of all legislation.

The Soviet period

In the years of the Soviet Union, narrow-normative interpretation of the legislation prevailed. не имели статуса базовых в формальном смысле. However, the principles of Russian civil law did not have the status of basic in the formal sense. However, at the same time, their importance was noted when disclosing the nature of norms, their ideological foundation, etc. The basic principles of Russian law and the meaning of legislative provisions were adopted as a basis for solving disputes by analogy. Meanwhile, such formulas received a fundamentally different meaning than it was in other states of the Romano-German legal model. необходимо было искать в самих нормах, а не в "абстрактной идее". After all, both the meaning of the legislation, and the principles of Russian law , were to be found in the norms themselves, and not in the "abstract idea". However, the doctrine indirectly acknowledged that these basic provisions go beyond the normative level. The division into the principles of law and legal principles was carried out.

The situation today

The approach that existed in the Soviet era found a continuation in the literature used today. In particular, in the textbook from 2003, published under the editorship of prof. Treushnikov, in the section on sources of procedural law, the following is indicated. при осуществлении правосудия, ВС осуществляет толкование сути этих положений. If necessary, use the analogy of the law, that is, apply the principles of Russian law in the administration of justice, the Armed Forces interprets the essence of these provisions. It should be borne in mind that they act as higher ideas, enshrined in the norms. Consequently, the Supreme Court gives an interpretation of legal acts.

Opinions of lawyers

, многие эксперты исходят из того, что существующая в передовых станах трактовка приемлема и для РФ. It should be noted that, considering the principles of the Russian legal system , many experts proceed from the assumption that the interpretation existing in the advanced countries is acceptable for the Russian Federation. Despite the fact that the provisions are not always clearly expressed, under conditions of reform and a certain lag in the doctrine of social needs, they could be used as tools for its adjustment. смогли бы обеспечить подчинение доктрины велениям справедливости. Thus, the principles of Russian civil law could ensure that the doctrine is subject to the dictates of justice. Vedyakhin expresses an interesting opinion. He points out that, while recognizing the general improvement of different legal doctrines in modern conditions, it can be stated that the principles could act as more significant sources than they are now. They would focus the society on such values as freedom, equality, justice. In this regard, Martyshin notes that together with norms, the fundamental principles of law acquire ever greater importance . свойственна формализация положений. The Russian legal system is characterized by the formalization of provisions. For example, in Art. Article 14 of the Constitution states that generally recognized norms and agreements concluded by the Russian Federation with other states are part of the domestic doctrine. This legislation allows the possibility to apply the principles as an independent source of law.

The impact of globalization

Today, the principles of law are widely recognized as sources in the field of regulating relations on the world stage. This was largely facilitated by globalization. It embraced virtually all states, and penetrated the most remote regions of the planet. Today, it is difficult to find a state in which nothing is known about human rights, international justice, democratic freedom, etc. Globalization involves increasing the transparency of borders between different political, economic, and national structures. This, in turn, is conditioned by the need to develop more or less general rules on the world market. In this regard, national legal systems are internationalized, converging. This contributes to the unification of some legal institutions, industries and legislation in general. Internationalization takes place through acculturation and reception, bringing together different models through the standardization of norms. The elaboration of the principles of international law is carried out under the influence of legal science. As a rule, when preparing important documents (agreements between countries, etc.), they are guided by the studies of the most authoritative theoreticians.

Constitutional provisions

Among the international legal factors that influence the formation of a universally recognized doctrine, national legal systems are of particular importance. They consolidate democratic, humanistic foundations and the norms corresponding to them. Constitutional law promotes their transformation into specific industries. Often, fundamental provisions are fixed in the laws of the most advanced states. Only after a while and often with some outside help are fixed in the norms of other countries. As a result, constructive mutual penetration of progressive ideas, institutions, instruments, mechanisms of constitutional and international law and branch legislation of different states takes place. In this process, a definite global ideal will increasingly crystallize. Today, most scientists recognize the tendency of convergence of national legal systems. This indicates the acceleration of the creation of a universal legal model.

Features

At present, the international legal system is broadly characterized as a special institution, which includes principles and norms regulating relations between subjects. The key provisions forming the foundation are those that are recognized by most countries, have global significance and a fairly wide spectrum of action. Particular attention is paid to the principles in the European Charter of 1961, revised in 1996. The parties, when signing this document, recognized as the goal of their policy the achievement of conditions under which certain regulations could be effectively implemented.

Current issues

The constant expansion of the scope of application of norms and principles of international law is an objective law of the progress of civilization. In this regard, today, together with traditional foreign economic and political relations, disarmament issues, and the preservation of peace on the planet, other issues are also discussed. In general, they form the phenomenon of "globalization" mentioned above. The most relevant are issues related to the directions of development of mankind, united by a combination of political, economic, natural-climatic and spiritual needs. Among them, in particular, can be called the internationalization of the economic system, the formation of a worldwide market model, an increase in the number of transnational companies, the protection of nature, the fight against terrorism and so on. Separately it is necessary to say about the need to create a mechanism of judicial and other control and protection of freedoms and individual rights. It is quite obvious that these problems should be solved with the use of universally recognized norms, and through them - with the help of domestic legislation. This once again emphasizes the strengthening of the importance of world doctrine and the growth of its influence on the development of principles in Russian law.

Practical use

Since the 50's. The last century, the principles of law in the states of Western Europe are formed under the influence of integration processes that occurred within the EU. Thus, for example, a special term appeared in the ECHR's practice. It was formulated during the European Steel and Coal Association. The concept of "general principles inherent in the law of member countries" was enshrined in the Agreement on the Establishment of the Community. In accordance with Art. 215 (2), with non-contractual liability, the EU compensates for damages caused by its institutions or employees in the process of carrying out their duties, in accordance with provisions specific to the laws of the participating States. This principle is seen as an integral component of the legal system of the European Community. The violation of the situation is the basis for the cancellation of the EU acts in the courts. The ECHR, in its turn, is based on generally recognized principles. Such an important role of these provisions is conditioned by their direct connection with human freedoms. According to the ECHR, reflected in some decisions, the constitutional traditions of the member countries of the Community, the European Convention, as well as other normative acts of global importance serve as sources of the formation of principles.

Axioms

. Often they act as general principles of Russian law . Thus, for example, it is established that it is impossible to file a double claim in one case, in the consideration of a dispute the decision should not cause harm to third parties. как, например, равенство всех перед законом, одинаковый доступ к судопроизводству также считаются аксиомами. Such principles of Russian law as, for example, equality of all before the law, equal access to legal proceedings are also considered axioms. Equally important and fundamental is the provision on the fairness of the proceedings. It should be said that the study of normative acts used in the world shows that, as a rule, there is no distinction between fundamental principles and axioms.

Controversial moments

The analysis reveals a different interpretation of the notion of universally recognized principles of international law in Soviet and Western European jurisprudence. In the West, the basic provisions of national legislation, perceived in the world, act primarily as them. In the USSR, this concept embraced the principles that were common to socialist and bourgeois law. This led to the formation of the foundation for the peaceful coexistence of social structures that contradict each other. Resolution of the Plenum of the Armed Forces No.5 dated October 10. 2003, explaining the rules of application in the courts of general jurisdiction of norms and principles of international law, as well as agreements between the Russian Federation and other states, it is established that universally recognized provisions should be understood as imperative postulates adopted by the world community, which are not allowed to derogate from. These include, in particular, regulations relating to respect for human freedoms, and the faithful fulfillment of the obligations provided for in intergovernmental treaties. The generally recognized norm is defined as the rule of behavior. It is accepted and recognized by the community of countries as a whole and is fixed as legally binding. However, as experts note, these formulations do not allow differentiating norms and principles.

Conclusion

In the domestic doctrine, the question of interpreting the notion of universally recognized provisions remains at present open. Despite this, the fundamental principles of Russian law are considered stable categories, officially fixed in different regulatory acts. They are used in different legal branches. The principles of Russian law were most widely disseminated in court proceedings. The law establishes that the decisions in the case must be justified, lawful, fair. Participants in the process are given equal rights, bear responsibilities. The principles of law are expressed in the most general form in the Constitution. In accordance with it, the fundamental provisions are specified in the existing codes. The principles of domestic law are the basis for the mechanisms regulating social relations in various spheres.